Citation Nr: 1302646
Decision Date: 01/24/13 Archive Date: 01/31/13
DOCKET NO. 10-38 250 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an increased disability rating for post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. J. Kunz, Counsel
INTRODUCTION
The Veteran served on active duty from September 1968 to March 1971.
This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Winston-Salem, North Carolina Regional Office (RO) of the United States Department of Veterans Affairs (VA). In an April 2009 rating decision, the RO increased the disability rating for PTSD from 10 percent to 30 percent. On appeal, the Veteran is seeking a rating higher than 30 percent. In an October 2009 rating decision, the RO denied a TDIU.
In a February 2012 statement, the Veteran appeared to raise claims for service connection for hypertension, for ischemic heart disease, and respiratory disorders (described as PTSD sleep apnea and difficulty breathing), and a claim for benefits based on the need for aid and attendance. He also appeared to, in effect, request to reopen a previously denied claim for service for skin disorders (described as sores and rashes) claimed as related to Agent Orange or other herbicide exposure. Those issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran contends that a disability rating higher than the existing 30 percent rating is warranted for his PTSD. He had VA PTSD examinations in March 2007 and April 2009. The report of a February 2012 VA aid and attendance examination and a February 2012 statement from the Veteran each reflect reports of PTSD symptoms and effects that are different from and more severe than those reported in the 2007 and 2009 examinations. The Board will remand the PTSD rating issue for a new VA PTSD examination in order to obtain current information.
The Veteran is seeking a TDIU. He essentially contends that his service-connected disabilities (PTSD and diabetes) make him unable to secure or follow a substantially gainful occupation. A TDIU is warranted if the Veteran's two service-connected disabilities include at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more, and the combined effects of those disabilities make him unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a) (2012). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b).
At this time the Board is remanding for additional evidence the issue of the rating for the Veteran's PTSD. The TDIU claim is intertwined with the rating for PTSD, and so should be reconsidered after the PTSD rating is reconsidered. In addition, there is no medical evidence directly addressing the combined effects of the Veteran's service-connected PTSD and diabetes on his capacity for employment. On remand, the VA psychiatric examination regarding the current effects of PTSD should also include an opinion regarding the combined effects of PTSD and diabetes on the Veteran's employability.
The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The AMC or RO must ensure that the entire file, including the paper claims file and any relevant nonduplicative evidence in the electronic claims file, is provided to the examining psychiatrist for review.
Accordingly, the case is REMANDED for the following action:
1. The AMC or RO is to review the Veteran's paper claims file and his Virtual VA electronic claims file. For all documents contained in the electronic claims file that are relevant to the issues on appeal and are not duplicative of the documents already found in the paper claims file, the AMC or RO is to take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinician who is asked to review the claims file and provide findings and opinion in conjunction with the development requested herein.
2. The AMC or RO is to schedule the Veteran for a VA examination by a psychiatrist. Provide the paper claims file and any pertinent, nonduplicative evidence in Virtual VA to the examiner for review. The examiner should report the current manifestations, effects, and extent of the Veteran's PTSD. The examiner should describe the extent of occupational and social impairment produced by the Veteran's PTSD. It would be helpful for the examiner to assign a Global Assessment of Functioning (GAF) Score.
The examiner also should note the current manifestations and effects of the Veteran's type II diabetes mellitus, including effects on potential employment. The examiner should provide an opinion as to whether the combined effects of the Veteran's PTSD and diabetes, aside from the effects of any other disorders the Veteran has, would make the Veteran unable to secure or follow a substantially gainful occupation. The examiner should provide a clear and thorough explanation of the reasoning leading to his or her opinion on that question.
3. Thereafter, the AMC or RO is to readjudicate the issues of the rating for PTSD and entitlement to a TDIU. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case, afford an appropriate opportunity to respond, and return the case to the Board for further appellate action.
The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).